MBE Review_Evidence

Question 1

Judicial Notice

Answer 1

Appropriate when indisputable fact or can be verified by scientific principles

Court’s effect:
Criminal case - jury MAY, but are not required, to take judicially noticed fact as conclusive
Civil case -

Question 2

Preliminary Questions of Admissibility

Answer 2

1. Qualification of person to be a witness
2. Existence of a privilege
3. admissibility of evidence

shall be determined by the Judge, not the Jury

Question 3

Recollection Refreshed

Answer 3

Anything can be used to refresh recollection
asking leading question, writing allowed

opposing counsel may see document, conduct cross-exam, introduce relevant portions of document

Question 4

Past Recollection Recorded

Answer 4

reading into the record

Question 5

Character Evidence - Criminal Case

Answer 5

• Char Evid is Inadmissible, unless/until D opens the Door (Reputation, Opinion, Specific Acts)
  1) P cannot introduce any evidence of D’s bad character if purpose is to show D probably acted in conformity therewith & committed crime charged = No Propensity
  2) D is allowed to present relevant evid of D’s Good Character, limited to Reputation or Opinion evidence only on direct
  3) If D does present evidence of Good Character, then D opened the door, & P may rebut with evid of D’s bad character, limited to reputation or opinion evidence only on direct
  4) Evidence of prior bad acts are never admissible to show D probably acted unlawfully again & committed the crime charged = No Propensity; however, may be admissible for other purpose, MIMIC (probative value not substantially outweighed by unfair prejudice)
  5) If D testifies, then D automatically places his character for truth/untruth at issue & P can present evid to show D is untruthful

Question 6

Character Evidence - Civil Trial

Answer 6

• Char evid Inadmissible unless directly at issue or essential element to P’s claim/defense

1) No evid of char trait of party to show they acted in conformity therewith during event that arose to litigiation - No Propensity
2) however, if for some other purpose & relevant, is admissible (Defamation, Child Custody, Negligent Entrustment, Hiring Retention)
3) If party testifies, then automatically place character for truth/untruth at issue

Question 7

Habit

Answer 7

repeated response to a particular set of circumstances

same way, over & over again

trigger words - invariably, automatically, always, repetitively, regularly, customarily, habitually

Question 8

Ways to Impeach a Witness (5)

Answer 8

Prior Inconsistent Stmt
Bias/Motive to misrepresent
Prior Conviction
Specific Acts of Misconduct which bear on truth/untruth - on cross, extrinsic evid not allowed
Bad reputation in community for truth or veracity - extrinsic evid allowed

Question 9

Prior Inconsistent Statement

Answer 9

does not come in as true for general proposition, only comes in to destroy credibility
unless given under oath & as part of a trial hearing deposition or other proceeding
then it comes in also as Substantive evidence

Question 10

Bias / Motive

Answer 10

always material, always allowable, allows extrinsic evidence

Question 11

Prior Conviction

Answer 11

Crime involving dishonesty or false statement (perjury), regardless of felony or misdemeanor, it comes in as a matter of right, no discretion by judge

Serious Crime - Felony - punishable by more than one year, discretion by judge

Cannot be too remote - more than 10 years from date of release from confinement or conviction

Question 12

Collateral Matter

Answer 12

If testimony has very little to do with outcome of the case, no cumulative testimony
(waste of time, confusing the jury, irrelevant)

Question 13

admission

Answer 13

statement made by a party

Question 14

statement by non-party admissibility

Answer 14

offered for truth (exceptions) or other purpose

Question 15

non-hearsay (some other purpose - 801c)

Answer 15

not hearsay, not exclusions; not specifically listed in federal rules

verbal acts, statements to show insanity or knowledge, stmt to show effect on listener, stmt for impeachment

Question 16

non hearsay exclusions (exemptions)

Answer 16

statements of opposing party,
certain prior stmts by testifying witnesses subject to cross,
prior identifications,
prior consistent statements
prior inconsistent statements made under oath

Question 17

Hearsay

Answer 17

Statement made to prove the truth of the matter asserted

Question 18

Hearsay Exceptions

Answer 18

Present Sense Impression
Excited Utterance
Stmt showing current mental/physical condition
Stmt for medical diagnosis/treatment
Recorded Recollection
Business Records

Require Declarant Unavailable:
Former Testimony
Dying Declarations
Statements against Interest

Question 19

Present Sense Impression

Answer 19

Stmt made to explain or describe event, while observing event or immediately thereafter

Question 20

Dying Declaration

Answer 20

Limited to Homicide cases

Question 21

Subsequent Remedial Measures

Answer 21

Inadmissible to prove negligence, culpable conduct, design defect, or need of a warning

Policy is to encourage people to make premises safe

Admissible to show ownership/control, feasibility of precaution measure, impeach credibility of a witness

Question 22

Confidential Communications (Marital) Privilege

Answer 22

Protects confidential communications made btw spouses, during existence of marriage
doe not protect before or after marriage

civil or criminal

both spouses are holders of this privilege - one spouse can render other incompetent

survives death and divorce

Question 23

Spousal Immunity Privilege

Answer 23

applies to criminal cases only
protects adverse testimony based on knowledge or communications/observations/impressions made before or during marriage, so long as spouses are married at time of trial

witness spouse is holder - can testify or not testify

lost upon death or divorce

Question 24

Confrontation Clause =

Answer 24

a hearsay stmt will not be admitted when:

1) it was offered against accused
2) declarant unavailable
3) testimonial stmt
4) accusesd had no opportunity to cross-examine the stmt

Question 25

when is a statement nontestimonial?

Answer 25

when the primary purpose of the interrogation is to enable the police to help in an ongoing emergency

Question 26

Excited utterance =

Answer 26

1) stmt relates to startling event

2) made while declarant was under stress of the excitement

Question 27

Present Sense Impression Exception =

Answer 27

stmt describing or explaining an event or condition made while or immediately after declarant perceived it

Question 28

A statement is testimonial when:

Answer 28

the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution

(after emergency)

Question 29

A witness may be impeached with a conviction for:

Answer 29

1) any felony
OR
2) any crime involving dishonesty or false stmt

Question 30

when may a felony be excluded?

Answer 30

R403 balancing test - probative value substantially outweighed by prejudice

(ex. sexual assault)

conviction is too remote - more than 10 yrs elapsed since date of conviction or release from confinement, whichever is later

Question 31

Are the opinions of experts who are retained in anticipation of litigation but who are not expected to testify at trial discoverable?

Answer 31

The opinions of experts who are retained in anticipation of litigation but who are not expected to testify at trial may be discovered only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means or when a medical report for an exam conducted under FRCP 35 is requested.

Question 32

During murder trial, the prosecution offers into evidence a properly authenticated affidavit summarizing the results of the defendant’s fingerprint test, as proof that the fingerprints on the murder weapon are those of the defendant. The affidavit was prepared pursuant to statute by the lab technician that conducted the test. is this admissible?

Answer 32

No, Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine.

Question 33

“Predecessor in interest” =

Answer 33

includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a predecessor in interest in a civil case) had an adequate opportunity and motive to cross-examine the witness.

Question 34

Under the state of mind exception to the hearsay rule, is a declaration of intent to do something in the future admissible?

Answer 34

Yes, admissible as circumstantial evidence tending to show that the intent was carried out.

Question 35

Is plaintiff’s testimony was to show she was suffering pain admissible?

Answer 35

Yes, as an exception to the hearsay rule as a declaration of present physical sensation.

Question 36

What constitutes a proper foundation laid on introducing a photograph into evidence?

Answer 36

To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the identifying witness is familiar with the scene or object that is depicted.

Question 37

What is the time limit for a party to request relief from a final judgment based on fraud, misrepresentation or other misconduct of an adverse party?

Answer 37

A court may relieve a party from a final judgment or order based on fraud, misrepresentation, or other misconduct of an adverse party, and such a motion must be made within a reasonable time not to exceed one year.

Question 38

What is the rule for Discovery Requests?

Answer 38

Without waiting for a discovery request, a party must provide to the other parties copies or descriptions of documents that are in the disclosing party’s possession or control and that the disclosing party may use to supports its claims or defenses.

Question 39

The communication between the doctor and the attorney’s client is necessary to help the client convey his condition to the attorney. Is this testimony admissible?

Answer 39

No, The testimony should be excluded because the attorney-client privilege applies to the examination done in preparation for trial.

Question 40

The scope of cross-examination is generally limited to:

Answer 40

(i) matters brought up on direct examination; and (ii) matters concerning the witness’s credibility (i.e., impeachment).

Question 41

Under what circumstances may police set up roadblocks to stop cars?

Answer 41

Because stopping a car is a seizure for Fourth Amendment purposes, police generally may not stop a car unless they have at least a reasonable suspicion that a law has been violated.

Even absent that suspicion, police may set up roadblocks to stop cars if (i) the cars are stopped on the basis of some neutral, articulable standard, and (ii) the stops are designed to serve a purpose closely related to a particular problem arising from automobiles and their mobility. [See Indianapolis v. Edmund (2000)]